Is it Legal to Create Artwork Depicting Celebrities?

There is quite a bit of artwork out there that involves celebrities, including athletes, actors, politicians, and other famous people and public figures. With most of it, the artist probably has not received permission or consent from the celebrity. So the question is, is that legal?

The short answer is that creating art depicting celebrities may be legal in some situations, but it involves substantial risk. Tread carefully. Here we’ll explain what you need to know.

See more about the Law for Artists, and Laws about Fan Art.

What are the rights of the artist vs. the rights of the celebrity?

Creating art that includes an image or reference to a celebrity presents a conflict between the artist’s rights of free expression (protected by the 1st Amendment) and the celebrity’s rights, which include:

1. Rights of Publicity

What are a celebrity’s rights of publicity?

The right of publicity is generally a restriction on making money off the “likeness” of a person without their consent. This is also called “right against appropriation” or “right against commercialization.”

“Likeness” can mean image, voice, name, signature, or anything else that would identify a particular person. Even an imitation or simulation of such likeness can be considered a likeness.1Midler v Ford Motor Co. 849 F 2d 460 (9th Cir. 1988)

Everyone, not just celebrities, has a right of publicity (although celebrities generally can obtain more money compensation if they pursue legal action). Each state has its own version of the right of publicity, which varies somewhat.

Is it OK to create art depicting a dead celebrity?

Not necessarily. Some states recognize a post-mortem right of publicity, allowing heirs and estates to control the commercial use of a deceased individual’s likeness.

So, if you paint a picture of a celebrity, and sell it, does that infringe their right of publicity?

The general rule is that if the painting is a straightforward, realistic depiction of the celebrity, this may be a violation of the celebrity’s right of publicity. In other words, it could be a problem for the artist if the celebrity sues. However, if the painting contains “significant transformative elements,” for example, if it is stylized or distorted in some way, it’s probably OK.

In a 2003 decision,2ETW Corp. v. Jireh Publishing, Inc., 6th Circuit Court of Appeals a court held that it was acceptable for an artist to use the image of Tiger Woods to create 250 serigraphs and 5,000 lithographs. These were stylized prints that also included other golfers in the background.

2. Rights of Privacy

What are a celebrity’s rights of privacy?

An artwork involving a celebrity or public figure may create issues around violation of privacy. Public figures, as with everyone else, have certain rights to privacy, including rights against:

  • Intrusion: Individuals have a right to protection against unwarranted intrusion upon their solitude and private affairs
  • Public Disclosure: Individuals have a right to protection against the public disclosure of embarrassing facts about their private lives.
  • False Light: Individuals have a right to protection against publicity that places them in a false light. This is similar to defamation.

That said, public figures have somewhat less privacy rights than ordinary citizens. This is due to the newsworthiness exception, as well as stronger free expression and political concerns. See our Guide to Privacy Law for more on this.

3. Rights Against Defamation

What are a celebrity’s rights against defamation?

If a work of art depicting a celebrity could be construed to negatively affect their reputation, and the art is presented as “factual” in some sense, this could be considered defamation.

Related Pages

Guide to the Law for Artists

Guide to Laws about Fan Art

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